Climate Change Reversal Reminds Us: We Live In A Roller Coaster Executive Order World (Forbes.com) June 2, 2017

One reason the Trump era seems a bit disorienting is that Washington, DC has become a roller coaster executive order world. With Congress unable to accomplish much of anything, presidents simply forge ahead on their own. A frustrated President Barack Obama, who could not get the legislation he wanted through Congress, set the tone for this when he said, “I’ve got a pen and I’ve got a phone, and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward…” Well good for you Mr. President—but the problem is that the next president also has a pen and can move the ball in a different direction overnight, as President Donald Trump has been doing.

The latest example of this is President Trump’s decision to withdraw from the Paris Agreement on climate change. For starters, we need to understand that the United States never officially joined the Paris Agreement. In order to join a treaty, Article II, Section 2 of the U.S. Constitution requires that two-thirds of the Senate approve and that never happened in the case of the Paris Agreement. Instead, President Obama decided to “adopt” it by means of an executive order, which only had the effect of saying the president likes the goals and will work toward them, but there was no legal U.S. commitment to the treaty. Some proponents argue that the Paris Agreement is not technically a treaty, allowing a president to sign it without approval by the Senate. But if that flimsy argument turns out to be true, it would simply mean the next president could undo it with his own executive order.

Either way the point is the same: when presidents choose to act unilaterally, without Congress, their actions are very weak and subject to being undone by the next president’s own executive order. The roller coaster of policy changes in these opening months of the Trump administration were really all set in motion by Obama’s failure to involve Congress in most of his key actions. Obama’s executive orders on environmental regulations, climate change, immigration—which were themselves stretches of a president’s constitutional powers—were all left vulnerable to Trump’s policy reversals.

A president’s action with regard to international treaties is doubly weak because of the nature of international law itself. Even a treaty such as the Paris Agreement on climate change is better understood as a set of international norms or goals to which the signatories aspire rather than a matter of firm law. Laws have enforcement and penalties, consequences for people or nations that violate them. None of this is present in the Paris Agreement—if a nation does not meet its goals on emissions, there is simply a report, nothing more.

In a sense, the drama of Trump’s policy reversals is the second act of a two-act play. Act one was President Obama’s series of executive orders setting new policy in a variety of fields: gun control, immigration, the environment. Act two is primarily defensive on Trump’s part, undoing this set of Obama policies.

What this means, then, is that we have a systemic problem, not just a political one. We have presidents acting unilaterally, with Congress watching from the sidelines. We spend too little time on the front end building any kind of policy consensus and, therefore, we end up with a dizzying ride of ups and downs as different presidents simply sign bold but weak executive orders implementing their ideas.

Even Franklin Roosevelt, who built the modern and powerful presidency, realized his need to work through the Congress. Other presidents who built lasting legacies—Lyndon Johnson’s Great Society or Ronald Reagan’s revolution—did the hard work of persuading and compromising with Congress. Now the flimsy Obama record is reversed the same way it was enacted, by executive order of the president. No wonder we’re disoriented and dissatisfied with Washington.